Articles

Illegal Internships:  the Dirty Secret of the Art World

It can be very hard to “break in” to the art world, largely because there are far fewer positions than there are applicants. As a way to get their foot in the door, many people accept positions as unpaid interns.

The theory is that, by working as an unpaid intern, you will gain valuable experience and connections that can lead to a paying job. In truth, very few of these positions ever lead to paid employment.

More importantly, the unpaid positions actually violate federal labor and minimum wage laws (as well as state laws in most places).

To prevent exploitation, the US Department of Labor has established six criteria, all of which must be met for an unpaid internship to be legal:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the trainee;
3. The trainees do not displace regular employees, but work under close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the completion of the training period; and
6. The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.

Rule number 4 is often the key… the intern can’t be used to perform “work” that benefits the employer. But of course, that’s exactly what most art organizations are looking for: free labor!

(Note that non-profit organizations may be exempt from these tests… unless the intern is employed within a profit-making operation within the non profit. In other words, if the intern is employed in a commercial operation of any kind, the non-profit exemption does not apply.)

Despite the fact that these unpaid positions are illegal, they often go unreported because the interns are afraid of being “blacklisted” in the art world. However, if an unpaid internship is reported to the state department of labor and the IRS, it can have serious consequences for the employer.

The employer will be required to pay wages, taxes, interest and penalties. In addition, a single report generally triggers an investigation, which may uncover previous unpaid internships, and the employer will be held liable for each.

In many states, it’s even possible for a third party to report the violation, so the intern need not be directly involved.

Both job-seekers and employers should understand that exploitive unpaid positions are no longer the norm, and that continuing this practice can have serious consequences for art organizations.

For further reading, visit the Employment and Labor Law Blog.